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2006 DIGILAW 523 (ORI)

Sudhirlata Dei v. Krushna Chandra Mohanty

2006-07-14

A.K.SAMANTARAY, P.K.TRIPATHY

body2006
JUDGMENT P. K. TRIPATHY, J. : This appeal under Section 19 read with Section 25 of the Family Courts Act, 1984 (in short ‘Act 1984’) and Section 28 of the Hindu Marriage Act, 1955 (in short ‘Act 1955) has been filed as against the judgment and decree dated 08.11.2002 passed by learned Judge, Family Court, Cuttack in Civil Proceeding No.15 of 1991. 2. Respondent is the husband and he filed the application under Section 13 of the Act, 1955 praying for a decree of divorce against the appellant, who is the wife. That was registered as Civil Proceeding No.15 of 1991. On 19.07.1997 learned Judge, Family Court, Cuttack delivered the judgment and granted decree for judicial separation under Section 10 of the Act, 1955. Re¬spondent challenged that judgment in Civil Appeal No.28 of 1997. A Division Bench of this Court on 18.7.2002 disposed of that Civil Appeal and remanded the case for disposal of the applica¬tion under Section 13 of the Act, 1955 on the basis of the evi¬dence already available on record and observed that the trial Court did not properly peruse and appreciate the evidence on record with respect to the prayer for decree of divorce prayed for by the respondent. On re-appreciation of the evidence and after hearing the parties,learned Judge, Family Court, Cuttack on 08.11.2002 delivered the impugned judgment granting a decree of divorce. 3. Inter se relationship between the appellant and re¬spondent is not in dispute. Their marriage in the year 1971 and separate living from the year 1985 is also an admitted fact. Respondent filed the application under Section 13 of the Act, 1955 alleging cruelty against the wife by bringing false allega¬tion against him, getting him suspended from service and initia¬tion of disciplinary proceeding on false allegation of bigamy and also by institution of criminal prosecution on self-same false allegation and willful desertion of the respondent since 1985. Appellant defended the case with the assertion that the allegation of extra marital relationship of respondent with Sanjukta Das, a co-employee in the High Court,and the allegations of illtreatment and cruelty are true and that by the aforesaid conduct she did not inflict any cruelty to the husband save and except bringing such fact to the notice of employer of respondent and the local police and, therefore, the latter is not entitled to a decree of divorce. It is also the admitted fact situation borne out on record that the appellant together with the younger son are staying in the house purchased in her name, whereas re¬spondent is staying in a rented house together with their daugh¬ter and the eldest son. Of course, it is stated in course of the argument that recently the daughter was given on marriage, but that fact situation is irrelevant for consideration of legality or otherwise of the impugned judgment. 4. Both the parties led oral and documentary evidence. On assessment of the documentary evidence- Exts.1 to 6 and the evidence of the respondent (P.W.3), learned Judge, Family Court found that in fact the appellant brought allegations of immoral association of the husband with Sunjukta Das and in that connec¬tion got her husband suspended from service and also got him prosecuted in a G.R. case and that amounts to mental cruelty. In the said context, referring to the evidence of the other witness¬es examined on behalf of the husband and particularly the evi¬dence of the daughter examined as P.W.5 together with the evi¬dence of the two sons examined as O.P.Ws.7 and 8, learned Judge, Family Court,Cuttack found that it is not proved on record that respondent has maintained any illegal or extra-marital relation¬ship with Sanjukta Das. Since such an allegation followed with actions by the wife-appellant resulted in harassment and torture to the husband, that constitute cruelty under Section 13 (i-a) of the Act, 1955 and accordingly, the husband is entitled to a decree of divorce. In the context of oral evidence adduced from both the sides, learned Judge, Family Court found that evidence in support of allegation of Sanjukta Das having relationship with the respondent is not acceptable in view of the evidence of P.W.5 and O.P.Ws.7 and 8, who are the daughter and sons of the parties. Accordingly, learned Judge, Family Court, Cuttack granted the impugned decree of divorce. The Court below considered the fact that after her marriage it is the respondent who facilitated appellant to undergo C.T. training and to serve as a teacher and that she is living in a house stands recorded in her name and drawing salary as a school teacher and the son living with her has become major and, therefore, the respondent is not liable to pay either permanent alimony or maintenance to the wife and the youngest son. 5. 5. Learned counsel for the appellant argues that when the facts scenario indicates that there was peaceful conjugal life from the year 1971 to 1985, the subsequent conduct of the appellant in agitating against the husband cannot be construed to be out of nothing and if the whole thing is viewed from that angle, then the evidence of O.P.Ws. are credible and acceptable so as to prove allegation of the husband having illicit relation¬ship with said Sanjukta Das and under such circumstance a decree of divorce is unjust and improper and liable to be set aside. The appellant, however, did not argue anything on the refusal of the Court below to grant permanent alimony or maintenance. 6. After perusal of the evidence on record, the impugned judgment of the learned Judge, Family Court and provision in Section 13 of the Act, 1955, we find that the findings and the conclusion arrived at by the learned Judge, Family Court relating to proof of cruelty is not liable to be interfered with in as much as the evidence on record proves that aspect. Once that be so, a decree of divorce cannot be set aside merely because the wife had remained peacefully with the husband for the first fourteen years of their marriage. When the respondent has not complained of anything during their conjugal life from 1971 to 1985, i.e., till the date of separation, therefore, that rela¬tionship between the parties cannot be capitalized by the appel¬lant so as to shadow the ill treatment and cruelty shown by her from 1985 onwards. For the reasons indicated above, we do not find any merit in this Matrimonial Appeal and accordingly, the same is dismissed. Under the given facts and circumstances, we direct the parties to bear their respective cost of litigation. A. K. SAMANTARAY, J. I agree. Appeal dismissed.